Sports and EU Law Decides on European Super League

While everyone in the UK was enjoying the Bank Holiday, and the sports media was busy speculating on the Premier League managerial merry-go-round, the Madrid Commercial Court delivered its judgement on the on-going case between the European Super League (in the form of its management company A22) and UEFA and FIFA.  Depending on which press release you read and which line of the judgement you’re looking at, the judgement was either a crushing victory for the ESL project or a vindication of UEFA and FIFA’s stance.  So, which was it?

First, the background.  For those who couldn’t care less about football and missed the beginning of the saga, the Super League project was proposed by 12 clubs as a breakaway mini league between the top clubs in various European countries.  They wanted to take advantage of the TV interest in showing matches between some of the continent’s top clubs to gain extra revenue (particularly following reduced matchday income during the pandemic).  UEFA saw this project as a direct threat to its own Champions League (featuring games between a larger group of the continent’s top teams).  Fans, particularly in England, objected to the proposed Super League on the grounds that it was a ‘closed shop’ with no promotion or relegation and seemed to have been designed solely to get extra money for the clubs.

Fan backlash led to the English clubs (who made up the majority of the founding members) pulling out, but Barcelona and Real Madrid remained committed to the project – which is why much of the subsequent legal action has taken place in Spain.

UEFA’s immediate response to the Super League proposal was to threaten to ban the founding member clubs from taking part in the Champions League, as a punishment for joining an unsanctioned, rival tournament.  The Super League claimed that this was an abuse of a dominant position, since UEFA, as the governing body of football in Europe controlled which teams could enter leagues and if opposing leagues could be founded.  And so, the competition lawyers laced up their boots and strolled onto the pitch.

Judging by the press releases, the Madrid judgement seems to say whatever you want it to…  From UEFA and FIFA’s perspective, the key aspect is that the judge recognised that the original Super League project has been “abandoned and discarded” by the founding members, and therefore that any requests concerning it specifically should also be abandoned.  As their press release states: “The court has not given the green light to, nor has it approved, projects like the Super League.”

However, as Clifford Chance’s Miguel Odriozola said to us afterwards: “UEFA and FIFA are the first companies condemned for an "by object" abuse of dominance. They have inaugurated a new category of blatant infringements of competition law [is that a] cause for celebration?”  The UEFA press release certainly glosses lightly over the fact that the judgement found they had been involved in anti-competitive conduct.

From A22’s perspective, this is the key element - the court did find UEFA had behaved in an uncompetitive way by prohibiting clubs from participating in other competitions, viewing this as an abuse of a dominant position.  This follows the principles of an earlier decision by the Court of Justice of the European Union.  A22, in their press release, welcomed the fact that “clubs should not have to fear threats of sanctions simply for having ideas and conversations.”

These differing views were also shared by lawyers we spoke to.  Miguel Odriozola said: “I am baffled by UEFA claiming victory in this case…the Super League obtained all it asked for! Clubs are now free to join the Super League and should no longer fear retaliation from UEFA.”  However, another lawyer we interviewed felt that the Super League had not obtained anything it had asked for as was therefore more likely to appeal the judgement than UEFA was!  This was more on the basis that the judgement confirmed the validity of UEFA’s pre-authorisation criteria, which any third-party competitions would need to meet, and, in the lawyer’s view, the proposed Super League left too much scope for refusal under these criteria.

All of which, therefore, leaves us in the position of both sides claiming victory and neither admitting any form of defeat.  So, to return to the original question, is this full-time or not?  In my view, the European Super League, as originally proposed, will not get off the ground.  This is partly based on the judge’s view that all requests concerning the project should be abandoned.  But, and again interestingly from an anti-competitive perspective, also because of the popular backlash from fans against a proposed ‘closed-shop’ competition that lacked a promotion and relegation system (the Champions League has a qualification system and UEFA has recently expanded its continental competitions to admit more clubs). 

However, from a broader perspective, the judgement makes it clear that UEFA cannot penalise clubs for attempting to form new competitions.  A proposed new competition would still need UEFA’s authorisation, but clubs would be free to discuss it.  Will we see a new version of the Super League in the near future?  Judging by A22’s press release, I wouldn’t bet against it.  After all, according to the press release: “The era of the monopoly is now definitively over.” 

If you’re a large football club or sports governing body in need of a competition lawyer in Spain, have a look at the Chambers and Partners rankings to see who are the leading names here.